Before me for review is a Recommended Order of Dismissal
issued by Administrative Law Judge (ALJ) Daniel J. Roketenetz on
October 10, 1989. That order recommended dismissal of the
captioned case, which arises under Section 210 of the Energy
Reorganization Act of 1974, as amended (ERA), 42 U.S.C. § 5851
(1982). The basis for the ALJ's recommendation was a Stipulation
of Dismissal submitted jointly by the parties to the ALJ,
agreeing to a dismissal of the proceeding with prejudice.
This case was initiated on April 6, 1988, when Complainant
filed a complaint with the U.S. Department of Labor, Wage and
Hour Division, of unlawful discrimination under the ERA. After
investigation, the Department determined that "the weight of
evidence . . . indicate[d]" that a violation had occurred.
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Respondent requested a hearing, which the ALJ continued upon the
parties' motion pending receipt of the Stipulation of Dismissal.
Signed by Jaafar M. Hamka, the Complainant, his attorney, and an
attorney representing Respondent, and dated October 6, 1989, the
stipulation states:
In consideration of having settled an action before the
Michigan Wayne Circuit Court involving the parties to
this proceeding and the Complainant herein no longer
wishing to pursue the complaint in this case and the
Respondent now being desirous of withdrawing its
request for hearing in this matter, the parties,
pursuant to the Federal Rules of Civil Procedure, Rule
41(a)(1)(ii), hereby enter into this stipulation of
dismissal. It is expressly agreed by and between the
parties hereto that the dismissal of this proceeding
herein shall be with prejudice.
In his dismissal order, the ALJ recommended that the Secretary
approve the stipulation, noting that the Department lacks
jurisdiction over the state court proceeding.
Section 5851(b)(2)(A) of the ERA provides that "the
Secretary shall, unless the proceeding on the complaint is
terminated by the Secretary on the basis of a settlement entered
into by the Secretary and the person alleged to have committed
such violation, issue an order either providing the relief
prescribed by subparagraph (B) or denying the complaint." The
settlement role taken by the Secretary is to review the terms of
settlement agreed upon by the private parties to ensure that the
settlement is fair, adequate and reasonable.
Under the stipulation submitted in the instant ERA
proceeding, Complainant states that he no longer desires to
pursue his ERA claim before me, and Respondent states that it
desires to withdraw its request for a hearing. The agreed upon
disposition is with prejudice, i.e., Complainant has agreed that
his right to maintain his ERA claim is barred "[i]n consideration
of having settled" a state court action. That "consideration"
was tendered presumably means that Complainant received something
of value in exchange for withdrawing his Federal claim. In these
circumstances, I view Complainant as having settled his ERA claim
in the instant proceeding.
No copy of any settlement agreement is included in the
record, and it appears that an agreement was not submitted to or
reviewed by the ALJ. In whistleblower cases under the ERA which
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are settled, it is error for an ALJ to dismiss a case without
reviewing the terms of settlement and making a recommendation as
to whether the settlement is fair, adequate and reasonable.
42 U.S.C. § 5851(b)(2)(A); 29 C.F.R. § 24.6(a) (1989). Ryan v.
Niagara Mohawk Power Corp., No. 87-ERA-47, Order to Submit
Settlement Agreement issued August 9, 1989, slip op. at 2; Fuchko
and Yunker v. Georgia Power Co., Case Nos. 89-ERA-9 and 10, Order
to Submit Settlement Agreement issued March 23, 1989, slip op. at
1 and 2. The Secretary has held that such a case cannot be
dismissed unless the Secretary makes such a finding. Macktal v.
Brown & Root Inc., No. 86-ERA-23, Order to Submit Settlement
Agreement issued May 11, 1987, slip op. at 2; Johnson v. Transco
Products, Case No. 85-ERA-7, issued August 8, 1985, slip op. at
1; Chan Van Vo v. Carolina Power and Light Co., Case No. 85-ERA-
3, issued April 12, 1985, slip op. at 1. See Thompson v. U.S.
Dept. of Labor, 885 F.2d 551, 556 (9th Cir. 1989). Although it
is not necessary that a settlement agreement be part of the final
order, as the Secretary explained in Macktal v. Brown & Root,
"[w]here a settlement is not fair and equitable to a complainant,
I cannot approve it for to do so would be an abdication of the
responsibility imposed upon me by Congress to effectuate the
purpose of section 5851, which is to encourage the reporting of
safety violations by prohibiting economic retaliation against
employees reporting such violati[o]ns." Slip op. at 2.
In the interest of judicial economy, rather than remand this
case to the ALJ to review the settlement and submit a new
recommended decision, the parties are ordered to submit to me for
review the terms of settlement including a copy of any settlement
agreement. If all the parties, including the Complainant
individually, have not signed a settlement agreement, the parties
shall submit a certification or stipulation, signed by all the
parties to the agreement, including the Complainant individually,
demonstrating their informed consent. The agreement should be
submitted within thirty days of receipt of this order.
